Second Washington Appellate Court Affirms Broad Standing Requirements Under State's Open Public Meetings Act

Arthur West filed suit under Washington’s Open Public Meetings Act, ch. 42.30 RCW (“OPMA”), against the Pierce County Council and individual Council members based on a series of e-mails between members of the Council and the Pierce County Prosecuting Attorney’s Office. In West v. Pierce County Council, No. 48182-1-II (February 22, 2017), Division II of the Washington Court of Appeals reversed the superior court and held that West had standing to pursue his claims.

RCW 42.30.120 and .130 permit “any person” to bring a lawsuit for sanctions or an injunction based on a violation of the OPMA. Adopting the analysis of Division I of the Court of Appeals in last year’s West v. Seattle Port Commission, 194 Wn. App. 821, 380 P.3d 82 (2016), Division II held that West qualified as “any person” under the plain language of the OPMA. It also determined that this interpretation of the OPMA’s standing requirements did not conflict with the Washington Supreme Court’s decision in Kirk v. Pierce County Fire Protection District No. 21, 95 Wn.2d 769, 630 P.3d 930 (1981).

Although the court held that West had standing to sue, it affirmed dismissal of his OPMA claim on the merits. In an unpublished portion of the opinion, the appellate court agreed with the superior court’s conclusion that no OPMA violation had occurred through the series of e-mail communications, as there was no evidence that the Council members collectively intended to engage in a meeting to transact official agency business.

From $37 to $339,000: Why the Price of Public Records Requests Varies So Much

The laws about public records differ from one government to the next and are further complicated by some technologies, like police body cameras. 

By Liz Farmer from Governing.com

In 2015, the editor of a newspaper in Florida filed a public records request with the Broward County Sheriff's Office asking for the email of every employee during a five-month period to be searched for specific gay slurs.

In response, the South Florida Gay News received a $339,000 bill.

The office said fulfilling the request would take four years and require hiring a dedicated staffer. The exorbitant charge set off a year-long legal battle that attracted the Associated Press and its lofty resources. To show how arbitrary the number was, the AP and South Florida Gay News filed a similar request to the sheriff's office in other Florida counties. They were quoted fees ranging from as little as $37 to more than $44,000.

Local and state laws regarding what constitutes the public’s domain are about as uniform as a patchwork quilt. And technology -- or a lack thereof -- further contributes to the increasing cost variance between jurisdictions.

New IT software, for the governments that can afford it, has certainly sped up the time it takes to fulfill requests and thus lowered the price of information. But in some cases, technology can complicate matters. This issue is particularly heightened when privacy concerns require time-consuming redaction work.

Take the emerging issue of police body cameras. People caught on video in homes or hospitals have a reasonable expectation of privacy, so faces need to be blurred or redacted -- a process that some say requires a painstaking number of manhours. The New York City Police Department made news last year for charging a local TV station $36,000 for access to 190 hours of body camera footage.

Partially in an attempt to avoid the labor, some governments have limited the public’s access to police videos. So far, jurisdictions in 21 states have passed laws regarding body camera footage -- most of them restricting it. The state of South Carolina has exempted the footage from public records requests altogether.

After receiving an imposing public records request for footage, the Seattle Police Department decided to hold a hackathon. The winner created software that automated some of the redaction process and now the police department uploads redacted body camera clips to YouTube for anyone to see.

Meanwhile, watchdog groups and media organizations that push for more transparency argue that redaction technology has evolved in recent years. Companies like MotionDSP are retooling their software to work faster, while companies like PRI Management will redact videos for agencies either for a per-video or annual fee.

Body cameras are a new technology, so inconsistency is understandable. Emails, on the other hand, aren't so new and yet the cost of fulfilling a records request for them still varies greatly.

According to Frederic Smalkin Jr., a Baltimore City Law Department attorney, new software has easily cut down on the e-discovery process in his agency by half. Meanwhile, Andy Wilson, CEO of the data management company Logikcull, said he regularly speaks with governments that are still printing out emails and redacting by hand.

As new types of electronic records pop up -- like text messages and Snapchats -- governments will have to consider whether they apply to the public domain. The landscape will likely continue to be inconsistent from one jurisdiction to the next. But in the meantime, Adam Marshall of the Reporters Committee for Freedom of the Press, thinks governments could be doing better.

“The tools already exist for these types of records requests to be complied with,” he said. “The agencies need to be thinking about ensuring compliance with existing law when they adopt new technology.”

 

FOIA and Complaints About Judicial Conduct

Immigration judges are career civil-service employees in the Department of Justice’s executive office. The judges preside over matters such as deportation, exclusion, removal and rescission proceedings for non-citizens charged with immigration law violations. The American Immigration Lawyers Association submitted a request under the federal Freedom of Information Act (FOIA) for records about complaints filed against immigration judges. The Department of Justice disclosed thousands of pages of records, but redacted (1) information that disclosed the identity of individual judges, and (2) information that was determined to be non-responsive to the specific request regarding judicial conduct. The U.S. Court of Appeals for the District of Columbia found that the Department of Justice erred with respect to both categories of redactions. American Immigration Lawyers Association v. Executive Office for Immigration Review, 830 F.3d 667 (D.C. Cir. 2016). The Court concluded that the government’s across-the-board approach to redacting immigration judges’ names was improper and remanded the case for rehearing with a more particularized inquiry into the propriety of redacting individual judge’s names. With respect to redactions based on non-responsiveness, the Court found no basis in FOIA for such redactions. The government was without authority to redact information within the records on the basis of non-responsiveness when no statutory exemption shielded the information from disclosure.

Washington Supreme Court Holds Nonprofit Zoo Operator Not a Public Agency for Public Records Act Compliance

The City of Seattle owns, and for many years operated, the Woodland Park Zoo. Acting under statutory authorization, the City contracted with the Woodland Park Zoo Society, a privately formed not-for-profit corporation to manage and operate the Zoo. Following the lead of earlier decisions of the Washington Court of Appeals and those of other states’ courts, the Washington Supreme Court confirmed the application of a four-part balancing test to determine whether an entity is the "functional equivalent" of an agency and therefore subject to the state’s Sunshine Laws. Fortgang v. Woodland Park Zoo, No. 92846-1 (Jan. 12, 2017). The four factors (known in Washington as the "Telford test") are:

  1. whether the entity performs a government function;
  2. the extent to which the government funds the entity’s activities;
  3. the extent of government involvement in the entity’s activities; and
  4. whether the entity was created by the government.

The Zoo Society operates the Woodland Park Zoo under an operations and management contract with the City of Seattle. The case arose from the Zoo Society’s refusal to provide documents to a requester seeking information about the Zoo’s former elephant exhibit. The Zoo Society denied that it was an agency subject to the state’s Public Records Act (PRA), and the requester brought suit. Of the four Telford factors, the Court found only the second to be inconclusive. Under the Telford analysis, the Court held that the Zoo Society is not the functional equivalent of a government agency.

Applying the first factor, the Court held that operation of a zoo is not an inherently governmental function. On the second factor, the Court observed that "the type of funding matters and, specifically, that an ordinary fee-for-services model typically weighs against functional equivalency....But Washington cases also suggest that the percentage of funds attributable to public sources is the foremost consideration." The City provides approximately 30 percent of the Zoo Society’s annual funding. The Court found the second factor to be inconclusive.

On the third factor, the Court applied a "day-to-day" operations analysis to find that the City did not exercise operational control over the Zoo Society. The Zoo Society’s board acted in total independence from the City. In prior cases, a local government’s retention of substantial control through public official seats on the respective boards resulted in findings of significant government involvement under the third Telford factor.

With respect to the fourth factor, the Zoo Society was incorporated solely by private individuals, so the Court would not attribute its "origin" to special legislation or other government action. The Court explained: "The Telford test is designed to prevent the government from operating in secrecy via a private surrogate. It is not designed to sweep within PRA coverage every private organization that contracts with government. This remains true even if the contracts in question are governed or authorized by statute." Therefore, neither the City nor any other public agency subject to the PRA "created" the Zoo Society under the fourth factor.

Applying all four factors "on balance," and with only one factor inconclusive, the Court held that the Zoo Society is not the functional equivalent of a government agency under the Telford test. Accordingly, it is not an "agency" subject to PRA requirements.

PRA Initial Response Requires Reasonable Estimate Of When Records may be Provided

A Washington court of appeals ruled that the City of Lynnwood violated the Washington Public Records Act (“PRA”) when it failed to provide “any reasonable estimate when records would be provided” in its initial response to a broad records request. Hikel v. City of Lynnwood, No. 74536-1-I (Dec. 27, 2016).

The appellate court affirmed the trial court’s rejection of other PRA claims by a former City Councilmember, represented in the case by the City’s former mayor. The trial court had earlier rejected all of the claims.

But the appellate court found that, despite the City’s efforts to comply with the PRA, the initial response to the request did not satisfy RCW 42.56.520. That provision requires a response within five business days of receipt of the request. If the agency needs additional time, it must acknowledge the request and include “a reasonable estimate of the time the agency...will require to respond.” RCW 42.56.520(3). A reasonable estimate of the time needed to provide a first installment of records has been found compliant. Opinion at p. 10 (citing Hobbs v. Wash. State Auditor’s Office, 183 Wn. App. 925, 943, 335 P.3d 1004 (2014)).

The City’s initial response had asked for clarification due to the large volume of responsive records and advised that it would provide an estimate after it received clarification from the requester. The City then provided its estimate 11 days later. The appellate court held that the City’s initial response was a procedural violation of the PRA. The City was not liable for penalties, but it was subject to an attorney fee claim as to that single violation.

Public records officers will use this case as a further check to be added to the already-long checklist to assure PRA compliance.

Attempted Murder For Hire And Public Records

In 2010, Michael Mockovak was found guilty of soliciting and attempting to murder his business partner, among other charges. While incarcerated, Mockovak filed suit under the Washington Public Records Act, chapter 42.56 RCW (“PRA”), against King County and the King County Prosecuting Attorney’s Office, seeking all documents referring to the immigration status of an informant, Kultin, who helped secure Mockovak’s conviction. Although records were disclosed, many were heavily redacted to protect attorney work product. The agencies also withheld Kultin’s National Crime Information Center (“NCIC”) Report, arguing they were barred from disclosing it by federal statute. In affirming the trial court’s decision in favor of the agencies, the Washington Court of Appeals addressed a number of discovery and PRA issues. Mockovak v. King County, No. 74459-3-I (Dec. 19, 2016).  

The PRA Does Not Override Federal Touhy Regulations.  Mockovak’s convictions arose out of a joint federal-state investigation conducted by the Puget Sound Safe Streets Violent Crimes Task Force. The task force included both federal and state law enforcement officers specially appointed to federal positions. Mockovak argued that certain task force documents became subject to the PRA when task force member Carver (also a Seattle Police Department detective) “used” the documents, citing the Washington Supreme Court decision in Concerned Ratepayers Association v. Public Utility District No. 1 of Clark County, 138 Wn.2d 950, 983 P.2d 635 (1999). While the appellate court agreed the task force documents likely qualified as public records under the PRA, that alone did not require disclosure. Because the documents were created by and belonged to a federal agency, the PRA did not permit a Washington state agency to release them in contravention of the federal agency’s regulations. Federal agencies are statutorily authorized to adopt regulations – known as Touhy regulations – governing agency administration, including use and disclosure of records. See 5 U.S.C. § 301.
 
Public Records Disputes Are Not a Forum to Raise Brady Claims.  Mockovak also argued that he was constitutionally entitled to the requested records under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), which requires the prosecution to turn over material exculpatory evidence to the defense. The Court rejected this argument, citing numerous federal decisions holding that Brady claims are proper only in connection with a criminal proceeding, not a suit for the disclosure of public records. The Court noted that “[t]his is not to say that the PRA trumps or otherwise limits what Brady allows. It simply means that the issue must be litigated in the proper forum.”
 
Records Were Protected Work Product.  The Court also rejected a number of work product arguments raised by Mockovak. First, King County and the Prosecuting Attorney’s Office’s communications with the U.S. Attorney’s Office were protected as work product under the “common interest” rule, even if there were some “tensions” between the offices regarding the details of Mockovak’s prosecution. Such tensions did not preclude the agencies from sharing common investigative and prosecutorial interests. Further, disclosure of certain documents to “friendly witness” Kultin did not result in a waiver, as he participated in both the prosecution and investigation and shared a common interest in having Mockovak prosecuted.  The Court also held that documents prepared by the U.S. Attorney’s Office were “prepared in anticipation of litigation” – to prosecute Mockovak – even though the U.S. Attorney ultimately agreed that the State should handle the prosecution.  The documents constituted “opinion work product” that was “absolutely immune from disclosure” and, even if regular work product, Mockovak did not demonstrate a substantial need for the documents.
 
Partial Disclosure of Information Contained in NCIC Report Did Not Waive Federal Exemption. Mockovak’s final argument was that the NCIC Report was improperly withheld because the agencies waived any protection of the report when Carver summarized information he learned from the report in his declaration testimony. The PRA allows agencies to not disclose records when “[an]other statute . . . exempts or prohibits disclosure.” RCW 42.56.070(1). Here, the agencies relied on 28 U.S.C. § 534, governing exchange of criminal identification records between agencies. In rejecting Mockovak’s waiver argument, the Court observed that “a federal statutory bar on disclosure cannot be waived.” Moreover, general discussions of topics or partial disclosures of information contained in a document do not waive an otherwise valid exemption over the document itself. Carver’s references to arrest and criminal history information contained in the NCIC Report were “limited, general, and cursory” and did not waive the protections of the PRA’s “other statute” exemption and 28 U.S.C. § 534.
 

Public Records for "Commercial Purposes"? Washington Court of Appeals Addresses Another Dispute - Rejects Union's Constitutional Privacy Argument

Earlier this year, Division II of the Washington Court of Appeals determined that the Freedom Foundation’s public records request for names and contact information of home healthcare workers was not a request for “commercial purposes.” SEIU Healthcare 775NW v. Dep’t of Soc. & Health Servs., 193 Wn. App. 377, 377 P.3d 214, review denied, 186 Wn.2d 1016 (2016). This week, the Court addressed a similar dispute over the Foundation’s request for names of childcare providers in Washington’s “Family, Friends and Neighbors” program and their “state contact” information. SEIU Local 925 v. Freedom Found., No. 48522-2-II (Dec. 20, 2016).

Washington’s Public Records Act, chapter 42.56 RCW (“PRA”), prohibits disclosure of “lists of individuals requested for commercial purposes.” RCW 42.56.070(9). The Foundation claimed that its purpose was to notify childcare providers of their right to refrain from union membership and fee payments. SEIU countered that the Foundation’s fundraising materials specifically mention its use of the lists of provider names. Largely reiterating its prior holdings, the Court held that the Foundation’s purpose was not a commercial one because the Foundation does not intend to general revenue or financial benefit from the direct use of the information. Financial benefit garnered from mentioning the provider information to publicize the Foundation’s work was too attenuated to be a direct use.
 
Also in line with its prior decision, the Court rejected SEIU’s “linkage argument” – that information can become non-disclosable if it could somehow lead to other private information being tracked down from other sources. While property addresses might be the same as the locations where children live or receive childcare, the Foundation’s request did not seek the names and addresses of any specific children. The Court would not look to what information could be discovered beyond the four corners of the records requested to determine if an exemption applied.
 
The Court next considered SEIU’s argument that the privacy protections in article I, section 7 of the Washington constitution prohibited the release of the requested information. The Court rejected this claim, finding that (1) SEIU did not meet its burden of proving that a person’s name and contact information were historically treated as “private affairs” under the constitution; (2) representations by a state agency that information would be kept confidential did not give constitutional protection to such information; (3) the situation was not analogous to the home privacy issues implicated by warrantless searches of a home; and (4) the PRA provided “valid authority of law” to obtain information provided to participate in a public program. The trial court therefore did not err by denying a permanent injunction on the basis of SEIU’s constitutional and statutory arguments.
 

Bikini-Barista Video Disclosure Deal Would Cost Everett $45K

By Scott North from Herald Net

EVERETT — It looks as if an Olympia man could get a check for $45,000 from the city of Everett, along with copies of police surveillance videos of bikini baristas behaving badly.

The Everett City Council on Wednesday is scheduled to consider a settlement that city attorneys negotiated with prolific public records requester Arthur West.

The deal would bring an end to litigation over West’s 2014 demand for the barista videos. It also would memorialize his offer to not publish any of them on the Internet unless they contain images of public officials engaged in misconduct.

"I’m very encouraged that the city and I could come to a reasonable arrangement that would guarantee that the public interest would be served while not publishing all of the videos online," West said. "It was never my intention to publish the videos of the baristas online."

The record also is clear that West has for months quietly been seeking a cash payout in the case. He retained an attorney last summer who repeatedly demanded $150,000 or more to make the controversy go away.

West sought surveillance videos that Everett police and the FBI gathered as they investigated public corruption and prostitution at sexpresso stands in Snohomish County.

The city agreed the 5.3 terabytes of video were subject to disclosure under the state’s open records law. It offered West viewing access. However, officials resisted his demand for copies. They said surveillance videos showing baristas stripping and engaging in sexual conduct with each other and customers amounted to "nonconsensual pornography." Releasing the videos would violate privacy rights, particularly if they wound up online, the city argued.

Superior Court Judge George Appel in December ruled the city’s "inspect-but-don’t copy" position violated the Public Records Act.

West said the litigation was appropriate because the city’s had created what he called a "peek-a-boo" exemption to disclosure. City officials may have taken that stance in good faith, but they still deprived him legal access to records that contain evidence of official misconduct, he said last week.

Investigators have never maintained otherwise.

Darrell O’Neill, a former Snohomish County sheriff’s sergeant, was sentenced to a year in jail last week for the felony of conspiring to engage in laundering money connected to the sexpresso business. He only began admitting the scope of his illegal conduct when confronted by video evidence showing him in uniform in intimate embrace with coffee hut workers, records show.

The investigation found the stands were multimillion-dollar operations that mixed selling coffee drinks with customers paying baristas for sexually explicit conduct, primarily flashing private parts but also exchanging sex for money.

The state Public Records Act allows a judge to impose penalties for each day a government illegally withholds records. Assistant city attorney Ramsey Ramerman said settling with West now makes sense given the court’s ruling.

"The benefits to the city are quickly diminishing if we try to litigate over the settlement amount," Ramerman said.

That doesn’t mean the settlement was reached without pushing back and forth.

West, who is not an attorney, represented himself in the courtroom to argue the public records aspects of the case. He also retained Olympia attorney Jon Cushman to press the city for a cash award, according to emails The Daily Herald obtained under a public records request.

"This case should settle," Cushman wrote Ramerman in August. "A media feeding frenzy is about to occur."

The city’s response: It could handle any frenzy that arose and the legal questions were real.

Cushman demanded $175,000 and complained when his message went unanswered. He renewed the $150,000 demand in December after the court ruled against Everett.

Ramerman told West’s attorney that amount was "a conversation killer," and the city instead asked the judge to revisit the ruling.

Appel stood firm, however, and negotiations commenced.

West in August told The Daily Herald he wasn’t trying to force a cash award from the city and that resolving the public access questions raised by the case were his primary attraction.

"The public interest is served by having rewards for people who have the time and the skill to spend years if necessary in court to uphold the people’s right to know," he said last week.

Copyright (c) Herald Net

No Right of Access to Security Video Footage Revealing Security Capacity for Surveillance System

Republished with permission from the International Municipal Lawyers Association (IMLA) with Washington Law commentary from Lee Marchisio, Foster Pepper

 

Gilleran v. Township of Bloomfield, No. a-15-15 (Sup. Ct. N.J. Nov. 22, 2016)

Denial of access to town's video security tape footage permissible under [New Jersey's] Open Public Records Act ("OPRA") security exemption because footage contained critical information about operating system and vulnerabilities; however, court noted there may be a common law cause of action for releasing portions of footage.

Seeking to determine whether certain people had entered the Township's municipal building, Plaintiff Patricia Gilleran requested five days' worth of footage from one of Bloomfield's stationary security cameras. A clerk for the Township asked that the request be narrowed to a shorter time period, noting that five days of security camera footage was quite voluminous. Accordingly, Gilleran reduced her request to one day of footage and was later informed that her request had been denied under OPRA's exemption for security information.

Gilleran commenced action against the Township by filing a claim with its Law Division to access the requested footage under OPRA and a common law right-of-access claim, noting that the camera was in plain sight and surveying a public area. In her complaint, Gilleran requested that the court order the footage either be released or redacted pursuant to OPRA's security exemptions.

The Township, despite having never viewed the entirety of the recordings, contended that the footage fell within OPRA's security exception because it would allow a viewer to ascertain the actual area being surveyed by the camera. Since the cameras were strategically placed and contained within smoked glass, it was not immediately obvious to the general public as to what the cameras were surveying, despite their location in a publically viewable area. As a result, Bloomfield contended, allowing members of the public to obtain this security camera footage would defeat the original purpose of the security camera. Further, the area potentially surveyed was used not only by public employees, but also by members of the police department, confidential informants and victims of domestic violence whose identities needed to remain anonymous.

Gilleran responded that none of the OPRA security exceptions warranted a blanket prohibition, particularly given the Act's purpose (to grant public access to public records), and urged the court to require Bloomfield to examine the footage in order to determine whether portions of the video contained a security risk. Further, she reiterated, the cameras were publically viewable and had captured nothing that an individual physically present at the same location could also see. She also argued that since the Town had not actually viewed the tapes in their entirety, they had not effectively demonstrated that there was a security risk that warranted the OPRA exemption.

The trial court found Bloomfield in violation of OPRA. The Township appealed and the appellate court upheld the decision of the trial court.

The New Jersey Supreme Court reversed the decision of the appellate court, concluding that OPRA's exception, while not a blanket exception, nonetheless exempts local governments from releasing of video footage that reveal security capacity for security surveillance systems protecting public buildings. It also found the compelled release of security footage to be at odds with the legislative intent of New Jersey's OPRA statute. The court noted, however, that despite OPRA's security exceptions, there still may be a common law right-to-access claim that balances the interests of both parties and allows for citizens to obtain certain sections of surveillance footage. As a result, the case was remanded to be decided under the unresolved common law claim.

Patricia Gilleran v. Township of Bloomfield (A-15-15) (076114)

Washington Law Commentary

The Washington State Public Records Act provides a similar exemption for surveillance systems protecting public buildings: "As Division One of our court has held, 'Intelligence information provided by video surveillance systems ... falls squarely within the core definitions of 'law enforcement,' thereby exempting surveillance video recordings from disclosure under RCW 42.56.240(1).'" Gronquist v. State, 177 Wn. App. 389, 400–01, 313 P.3d 416 (2013) (quoting Fischer v. Wash. State Dep’t of Corr., 160 Wn. App. 722, 727–28, 254 P.3d 824 (2011), review denied, 172 Wn.2d 1001, 257 P.3d 666 (2011)). This portion of the law enforcement exemption "only applies to the [investigative, law enforcement, and penology] agencies enumerated in the statute." Does v. King Cty., 192 Wn. App. 10, 27–28, 366 P.3d 936 (2015). The agency must demonstrate that nondisclosure "is essential to effective law enforcement or for the protection of any person’s right to privacy." RCW 42.56.240(1); Sargent v. Seattle Police Dep’t, 179 Wn.2d 376, 395, 314 P.3d 1093 (2013). Washington courts have not extensively reviewed the separate "security" exemption statute, RCW 42.56.420. However, any agency or third party seeking nondisclosure under the security exemption statute’s terrorism provision must show that public disclosure "would have a substantial likelihood of threatening public safety." RCW 42.56.420(1); Does, 192 Wn. App. at 29.

Sunshine Committee 2016 Recommendations to Washington Legislature

The Washington State Sunshine Committee makes recommendations to the Washington Legislature to repeal or amend exemptions to disclosure under the state’s Public Records Act, Chapter 42.56 RCW. Earlier this week, the Committee released its 2016 Annual Report. The report summarizes committee discussions regarding the exemptions reviewed in 2016 and attaches five recommended amendments (at Report Exhibits A-E) to the Public Records Act and related statutes.

  • Exhibit A proposes to redefine the scope of certain public employee information exempt from disclosure. The proposal would also provide that the exemption for certain employer investigation records ends once the agency notifies the complaining employee of the investigation’s outcome. RCW 42.56.250.
  • Exhibit B would allow individuals associated with certain information in records to expressly consent to the information’s disclosure. RCW 42.56.230.
  • Exhibit C would limit an express exemption for certain proprietary data and trade secrets to only that information submitted by vendors to the Washington State Department of Social and Health Services regarding state purchased health care. RCW 42.56.270(11). 
  • Exhibit D proposes to extend the current exemption for public contracting bid proposals submitted to the state to bid proposals submitted to local agencies. Bid proposals would be exempt from disclosure until the state or local agency announces the successful bidder or rejects all proposals. Current RCW 36.26.030 would be repealed and replaced with a new provision in Chapter 42.56 RCW.
  • Exhibit E would impose procedural requirements to protect trade secret information upon both agencies and the businesses that confidentially disclose trade secret information to them. It would also subject businesses that contract with agencies to an adverse award of attorney fees if they seek to protect trade secret information and lose in court. The proposal does not provide a reciprocal attorney fee provision against those seeking the information if the business entity prevails in court. RCW 42.56.270.